BI 420156 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BI 420156 RO
ALSTATLEVINE REALITIES INC. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: BA 520344 S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 9, 1987 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator issued August 5, 1987. The order concerned housing
accommodations known as Apt 6J located at 1795 Riverside Ave.,
New York, N.Y. The Administrator ordered a rent reduction for
failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding by filing a Statement
of Complaint of Decrease in Services on November 20, 1986 wherein
she alleged that the landlord was refusing to paint her
apartment. She also stated that she had made frequent requests
for painting to be done. The tenant claimed that the apartment
was last painted in 1966.
The owner was served with a copy of the complaint and
afforded an opportunity to respond. The owner filed a response on
February 23, 1987 and stated that the apartment had been painted
in December, 1986. The owner also stated that the tenant had
refused access to the apartment for painting prior to December,
1986.
The Administrator ordered a physical inspection of the
subject apartment. The inspection was conducted on June 29, 1987
and revealed that the living room ceiling was water damaged,
cracked, discolored and peeling and that the kitchen ceiling
required painting.
The Administrator issued an order on August 5, 1987 and
ordered a rent reduction of $4.00 per month plus 10% of the
maximum legal rent. On September 1, 1987 the Administrator
issued an amended order wherein the amount of the rent reduction
was changed to be 10% of the maximum legal rent only. The rent
reduction was ordered to be effective August 5, 1987.
On appeal the owner states that the apartment was painted in
1985, prior to which the tenant refused to allow access. The
owner also states that the tenant never informed it of the leak
and that the complaint never mentioned a leak or water damage to
the apartment. The petitioner states that the roof has been
repaired and an appointment has been made with the tenant to
paint and plaster. Annexed to the petition is a paid bill from a
painting contractor which is offered to show that the apartment
was painted in February, 1986. The Commissioner notes, however,
that this bill does not state the address of the building that
the contractor was working on. A copy of the cancelled check,
made out to the contractor and dated February 26, 1986, is also
attached. The tenant did not file a response.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be
denied.
The Commissioner finds that the inspector's report provided
ample basis for the Administrator to have ordered the rent
reduction. The inspector clearly reported that the kitchen and
bedroom ceilings were discolored and required painting. The
living room ceiling was also found to have been discolored, as
well as damaged by the water leak. While the owner is correct in
stating that the tenant did not complain about the leak, in order
to obtain rent restoration the owner must show that the living
room ceiling has been painted.
The owner has totally failed to substantiate it's claims
regrading the tenant's refusal to allow access. The Commissioner
notes that, in the answer to the complaint, the owner stated that
it had painted the apartment in December, 1986 but now claims
that the apartment was painted in 1985 and supplies a paid bill
and cancelled check dated February, 1986. It is well settled
that the scope of review in an administrative appeal is limited
to facts or evidence presented before the Rent Administrator.
Since the owner did not submit the paid bill or check in the
proceeding below, it is now barred from doing so before the
Commissioner. Similarly, the Commissioner cannot consider the
owner's statement that it painted the apartment in 1985, when
this statement is at variance with that made by the owner in the
answer to the complaint. The Administrator's order was correct
and is, therefore, affirmed. The owner may file for rent
restoration when services have been fully restored.
THEREFORE, pursuant to the Rent and Eviction Regulations for
New York City it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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